C2002/923, Transcript of Proceedings [2002] AIRCTrans 768 (8 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT02665

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2002/923
C2002/1167
C2002/1214

APPLICATION FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Campbell's Australasia Pty Ltd for an order
to stop or prevent possible future industrial
action

Application under section 127(2) of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union to stop or
prevent industrial action

RESTRICTION IN TORT

Notice under section 166A of the Act
by Campbell's Australasia Pty Ltd re
action against the Automotive, Food, Metals,
Engineering, Printing and Kindred Industries
Union and Others re industrial action

MELBOURNE

10.18 AM, FRIDAY, 22 FEBRUARY 2002

MR M. McKENNEY: I seek leave to appear in C2002/1167, which is the section 127 application by the AMWU. Leave has already been granted in relation to C923/2002 which is Campbell's Australasia Pty Ltd section 127. And I also seek leave to appear in C2002/1214, which is the section 166A application.

PN1

MR J. MADDISON: In respect of C2002/923, which is Campbell's 127, I appear on behalf of the CEPU. I also foreshadow an adjournment application if that matter is to proceed today. In respect of C2002/1214 which is the 166A application, I appear on behalf of the CEPU. And your Honour at this stage I indicate that I only appear on behalf of the CEPU, in my submission, that is the only person that is a legal person who has been properly served in accordance with the Rules, and that is all I appear on behalf of.

PN2

THE DEPUTY PRESIDENT: Served by the applicant?

PN3

MR MADDISON: Yes. I will develop those arguments in due course, if required. And in respect of that I do not oppose leave of my friend in relation to that matter.

PN4

MR T. HALE: I am from the AMWU. I am continuing my appearance in C2002/923. I appear in 2002/1167 and 2002/1214.

PN5

MR MADDISON: Your Honour, it may be convenient, I will just slightly amend my appearance. Also appearing with me now is MR W. HAYES.

PN6

MR P. ANDRISKI: I appear on behalf of the CFMEU FED Division, in matters where we are mentioned.

PN7

THE DEPUTY PRESIDENT: There are three matters here. There is an application, I suppose I should do them in date order, an application by Campbell's Australasia Pty Ltd for an order under section 127(2), directed at a number of unions, those represented today, that industrial action stop at Campbell sites in Victoria from 7 February 2002. This matter is listed before Commissioner Grainger next Wednesday, 27 to 28, Wednesday to Friday, 27 to 28 February and 1 March 2002, at Shepparton Magistrates Court, High Street, Shepparton.

PN8

Then there is an application under section 166A, lodged on 21 February. Notice of intention to bring an action of tort against the AMWU, the CFMEU, the CEPU. Finally, there is an application by the AMWU for an order under section 127(2) of the Act against Campbell's Australasia Pty Ltd, its directors and employees who are involved in bringing about the industrial action. That matter was called on at short notice given that it is a related matter. Now, I propose to hear all these matters together today subject to any submissions that people propose to put. And I suppose I should hear from Campbell's as the initial applicants first, unless someone has a better suggestion.

PN9

Mr McKenney, I do have one question. This matter is set down for hearing next week, set down I think for four days of hearings. What exactly are we doing here today?

PN10

MR McKENNEY: I will explain that, your Honour. The matter - I want to go through the brief history of the matter. It has been before Commissioner Grainger on two occasions. On the first occasion it was in response to industrial action that commenced on 6 February, and Campbell's lodged a section 127 at that time which is the current matter that we are dealing with. Now, there was a 48 hour strike, there was a prospect of further industrial action which was realised. Commissioner Grainger listed the matter on 7 February.

PN11

There were interim recommendations issued on 7 February, in particular numbers 2 and 3 related to the dispute settlement procedures under the Campbell Soups Enterprise Agreement 2001 and the relevant part of that clause, your Honour, was to the effect that work continues normally while the dispute resolution process is progressed. That did not occur, your Honour, so that lead this week to an urgent listing before Commissioner Grainger which occurred on 20 February.

PN12

THE DEPUTY PRESIDENT: So how many hearings have taken place so far or conferences?

PN13

MR McKENNEY: Two hearings thus far, your Honour.

PN14

THE DEPUTY PRESIDENT: Any conferences?

PN15

MR McKENNEY: There were conferences on the last occasion and there was a - I think it was on the first occasion as well.

PN16

THE DEPUTY PRESIDENT: And those dates again?

PN17

MR McKENNEY: 7 February, was the first occasion, your Honour. And then this week 20 February.

PN18

THE DEPUTY PRESIDENT: And recommendations were issued when?

PN19

MR McKENNEY: Recommendations were issued on 20 February. There had been earlier recommendations which were called interim recommendations by the Commissioner.

PN20

THE DEPUTY PRESIDENT: And they were issued what, on 7 February?

PN21

MR McKENNEY: They were issued on 7 February. The reason for today's relisting, urgent request by Campbell's to relist the matter is that there has been further industrial action in defiance of those recommendations. So that is why we have returned today, your Honour, to seek the orders under section 127.

PN22

THE DEPUTY PRESIDENT: Right. So there is some sort of urgency you say?

PN23

MR McKENNEY: Yes. I might just outline to you, your Honour, the defiance of those recommendations.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR McKENNEY: And if necessary, your Honour, we can bring evidence to support these propositions today in relation to the industrial action that is occurring. Because on previous occasions the unions have denied knowledge of the industrial action actually occurring. So the recommendations issued on 20 February, I do not know if your Honour has those, a copy of those recommendations.

PN26

THE DEPUTY PRESIDENT: I have an undated document.

PN27

MR McKENNEY: We have a spare copy.

PN28

THE DEPUTY PRESIDENT: That is for Campbell's - yes, perhaps if you could - no, I do. Yes.

PN29

MR McKENNEY: Yes, thank you. So on 20 February at approximately 6 pm on that evening, your Honour, those recommendations were issued by Commissioner Grainger and they are in the terms that your Honour can read, that the Commission strongly recommended that any work stoppages at the Campbell soup plant terminate immediately; that no further work stoppage or industrial action be taken pending the result of negotiations between the parties in accordance with clause 10, which I have already referred to. I can hand, your Honour, a copy of the certified agreement.

PN30

THE DEPUTY PRESIDENT: Please do. Thank you. Which clause?

PN31

MR McKENNEY: Clause 10 is the most relevant clause for the purpose of today, your Honour, which you will find at page 5 of 23. And in particular we rely on the two parts of that agreement that relate to work continuing normally while agreements and disputes are processed. The first is in the first paragraph of clause 10, and later on, your Honour after the heading, accelerated procedure, the second paragraph, that the parties have agreed that work would continue pending determination of any dispute or grievance in accordance with the procedure outlined earlier in the clause.

PN32

And that is in fact specifically referred to in clause 3 of - sorry, paragraph 3 of Commissioner Grainger's recommendations.

PN33

THE DEPUTY PRESIDENT: Just in summary form, what is this alleged industrial action; and secondly, what is this industrial action all about in your view?

PN34

MR McKENNEY: The issue has arisen - - -

PN35

THE DEPUTY PRESIDENT: Just a summary.

PN36

MR McKENNEY: - - - your Honour, yes. The issue has arisen in relation to what could be referred to as long term injury cases of which there are eight employees in total. And the issue, your Honour, is in relation to their capacity to perform unrestricted duties. And what is currently occurring, your Honour, is that these individual employees have various types of restrictions because of medical conditions, in receipt of WorkCover benefits, those sorts of matters.

PN37

The situation has reached the point where Campbell's wishes to make decisions in relation to these employees in terms of their capacity to perform duties at Campbell's and some of the issues that are relevant to that, your Honour, relate to the - obviously the capacity of the employees to perform various tasks, what are the operational requirements at Campbell's and related matters. Allied with that, your Honour, is the desire of Campbell's to have a process with these employees so that these issues can be resolved.

PN38

The situation currently is that Campbell's is unable to provide full-time work on restricted duties for these employees and so Campbell's is - - -

PN39

THE DEPUTY PRESIDENT: So what do you wish to do?

PN40

MR McKENNEY: In relation to those employees have a dialogue with them and - - -

PN41

THE DEPUTY PRESIDENT: Part-time is it?

PN42

MR McKENNEY: Well, there has been in the discussions that have occurred between the parties thus far, your Honour, there have been discussions about various options as part of the negotiation process in the matter. Some of the issues might include what your Honour just mentioned and others as well, but there is no resolution at this point as to what the future of those employees is.

PN43

THE DEPUTY PRESIDENT: All right. So that is the issue.

PN44

MR McKENNEY: That is the underlying issue.

PN45

THE DEPUTY PRESIDENT: And what is the industrial action you say is occurring?

PN46

MR McKENNEY: The industrial action, I will just deal with - I can deal with it if your Honour is unaware of the industrial action that occurred in relation to the matter in early February. But I will deal with specifically the industrial action that has occurred subsequently to the recommendations on 20 February.

PN47

THE DEPUTY PRESIDENT: Yes. Sorry, to interrupt you again, Mr McKenney, however, I would just like to make you aware of my commitments today. I have a matter at 2.15 and I have another matter at 4, which could take some time. So the time I have available to deal with your matters is limited. If you have evidence to put, or if you have a submission to put I suggest you put it and call the evidence, otherwise you may run out of time.

PN48

MR McKENNEY: Yes, I appreciate your Honour's indication on that. As we have said there has been wilful defiance of these recommendations since 20 February on several occasions by delegates, officials and employees. Firstly, your Honour, on the evening of 20 February, at 10 pm there was a half hour stoppage by employees. Between 3 am and 3.30 am on Thursday, 21 February there was a stoppage and yesterday afternoon between 2.30 and 3 pm, and 3.30 and 4.10 pm - - -

PN49

THE DEPUTY PRESIDENT: Sorry?

PN50

MR McKENNEY: 3.30 and 4.10 pm.

PN51

THE DEPUTY PRESIDENT: What was the first time?

PN52

MR McKENNEY: 2.30 to 3 pm.

PN53

THE DEPUTY PRESIDENT: 2.30 to 3 pm. Yes. And?

PN54

MR McKENNEY: And then 3.30 to 4.10 pm.

PN55

THE DEPUTY PRESIDENT: Yes. Stoppages.

PN56

MR McKENNEY: And last night between 11 and 12.

PN57

THE DEPUTY PRESIDENT: PM, yes.

PN58

MR McKENNEY: And with the further expectation, your Honour, that further industrial action will continue to take place on a rolling basis. Now, your Honour, the way in which we - I think what the unions say about that industrial action, I have got evidence that I can bring today to establish that if that is contested. But in view of the time, your Honour, we did have a proposal as to how to - yes, the proposal, your Honour, is to have the Commission chair a conciliation conference between the parties.

PN59

We indicated on transcript to Commissioner Grainger last Wednesday that we had a proposal we would like to put. For various reasons we did not discuss that proposal.

PN60

THE DEPUTY PRESIDENT: Well, that seems to me to be - unless the other side has a difficulty with that, a sensible procedure to follow. And so we would adjourn these matters into conference unless you have some difficulty on the other side I propose to do that now.

PN61

MR MADDISON: I have no difficulty with that, your Honour, I just wanted to say two things before we do that. Just to indicate that if the matter does not get resolved and further hearing is today, that we would be seeking to run the adjournment applications for the 127.

PN62

THE DEPUTY PRESIDENT: No, I have heard your submission on that, I haven't ignored it.

PN63

MR MADDISON: I appreciate that, your Honour. And in relation to the 166A I do not want it to be said by the fact that we are going into - - -

PN64

THE DEPUTY PRESIDENT: You are accepting notice that notice has been complied with.

PN65

MR MADDISON: I appreciate your obligations in any event under the statutory scheme to seek to conciliate any matters. But I just do not want it to be said that by us going into conciliation we can see that there is any conduct and I just want that noted, your Honour. Apart from that I am happy to go into conciliation.

PN66

THE DEPUTY PRESIDENT: All right. So unless there is anything perhaps we should adjourn into conference.

PN67

MR McKENNEY: Your Honour, could I just say one thing in relation to that and bearing in mind the urgency of the matter. If the matter is not resolved then we would be seeking to press the making of those 127 orders today. And just to flag I do have an amended order to reflect the changes and an amended application.

PN68

THE DEPUTY PRESIDENT: I am in your hands. I have limited time. I will now adjourn into conference. On that basis this hearing will be adjourned.

NO FURTHER PROCEEDINGS RECORDED